Helping Trial Lawyers Navigate the Appellate System

I’ve Been Docket-Equalized. What Now?

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Trial lawyers who don’t handle appeals regularly may be surprised to learn that their case has been transferred from the appellate court where the appeal was originally docketed to one of the other thirteen intermediate courts of appeals.

Legislatively mandated “docket equalization transfers” are intended to reduce disparities in the number of new cases filed per justice among the courts of appeals. The cases to be transferred are not identified individually, but are determined by a blanket administrative order the Texas Supreme Court issues periodically. A sample transfer order is available here.

Before a 2008 rule change, these transfer orders caused problems when the law of the transferor court differed from that of the transferee court. Now, Texas Rule of Appellate Procedure 41.3 addresses the precedent that applies in cases transferred from one court of appeals to another for docket-equalization or other purposes. The transferee court is to apply the law of the transferor court.

Re-transfer?

A little-known procedure exists for seeking a transfer back to the original appellate court for “good cause.” The procedure is laid out in a Supreme Court administrative order, Misc. Docket No. 06-9136 (¶¶4.01-4.04). The party requesting a “re-transfer” should file a motion in each of the two courts of appeals asking that each court’s chief justice forward the motion to the Supreme Court and comment on the proposed transfer. The Supreme Court will then determine whether to grant the motion and return the case to the original appellate court. See also Miles v. Ford Motor Company, 914 S.W.2d 135, 137 n.2 (Tex. 1995).

If you’ve received an unwelcome docket-equalization order, consider whether good cause may exist to seek a re-transfer. Keep in mind, though, that these motions rarely succeed. The potential benefit of a re-transfer may not be significant enough to justify the cost and potential delay.

todd smith - austin texas

D. Todd Smith
About the Author

D. Todd Smith is an Austin-based civil appellate specialist who works with trial teams from the earliest stages of litigation. In trial courts, he takes the lead on strategic analysis and briefing, jury charges, and potentially dispositive motions, all with a focus on preserving error and positioning cases for appellate review.

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